State v. Hessler
| Citation | 274 Neb. 478,741 N.W.2d 406 |
| Decision Date | 30 November 2007 |
| Docket Number | No. S-05-629.,S-05-629. |
| Parties | STATE of Nebraska, Appellee v. Jeffrey HESSLER, Appellant. |
| Court | Nebraska Supreme Court |
James R. Mowbray and Jeffery A. Pickens, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and J. Kirk Brown, Lincoln, for appellee.
Jeffrey Hessler was convicted in the district court for Scotts Bluff County of first degree murder, kidnapping, first degree sexual assault on a child, and use of a firearm to commit a felony. Following Hessler's conviction for first degree murder, the jury found that three statutory aggravating circumstances existed. After the convictions and findings of aggravating circumstances but prior to sentencing, the court granted Hessler's pro se request to waive counsel for the remainder of the case. Hessler appeared pro se at the sentencing proceeding. In its sentencing order, the sentencing panel accepted the jury's verdicts finding that three statutory aggravating circumstances existed. The panel further concluded that no statutory or nonstatutory mitigating factors were established, that mitigating factors did not approach or exceed the weight of the aggravating circumstances, and that a death sentence would not be excessive or disproportionate to sentences previously imposed in similar circumstances. The panel therefore sentenced Hessler to death for first degree murder; to life imprisonment without parole for kidnapping; to 40 to 50 years' imprisonment for sexual assault; and to 20 to 25 years' imprisonment for the firearms conviction, with each sentence to be served consecutively to the others.
This automatic appeal followed. After Hessler filed a pro se brief assigning no error, we appointed counsel to represent Hessler on appeal. Appointed counsel filed a brief assigning various errors with respect to the guilt, aggravation, and sentencing phases of the trial. We affirm Hessler's convictions and sentences.
On the morning of February 11, 2003, 15-year-old Heather Guerrero left her home in Gering, Nebraska, to make deliveries on her newspaper route. Heather never returned home. A search was conducted, and on the morning of February 12, Heather's body was found in the basement of an abandoned house near Lake Minatare, Nebraska.
During the investigation of Heather's disappearance, a witness who was walking his dog on the morning of February 11, 2003, reported that he had heard a scream and had seen a silver or tan Nissan Altima drive by at a high rate of speed. A car matching that description belonged to a friend of Hessler's who had allowed Hessler to drive the car. A search of the car revealed three boxes of live ammunition some spent casings, and Hessler's wallet. After police questioned Hessler, Hessler gave police his semiautomatic handgun. In response to interrogation, Hessler admitted to having sex with Heather but asserted that it was consensual. Hessler said that after Heather indicated she would not keep the encounter secret, he "freaked out," took her to the basement of the abandoned house, and shot her.
On February 26, 2003, the State filed an information charging Hessler with five counts in connection with the death of Heather: count I, premeditated murder; count II, felony murder; count III, kidnapping; count IV, first degree sexual assault; and count V, use of a firearm to commit a felony. In connection with counts I and II, the State gave notice of aggravating circumstances and alleged that under Neb.Rev.Stat. § 29-2523 (Cum. Supp.2006), (1) Hessler had a substantial prior history of serious assaultive or terrorizing criminal activity (§ 29-2523(1)(a)); (2) the murder was committed in an effort to conceal the commission of the crimes of the kidnapping and sexual assault of Heather and the sexual assault of another girl, J.B. (§ 29-2523(1)(b)); and (3) the murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence (§ 29-2523(1)(d)).
On May 19, 2003, Hessler made an oral motion to plead guilty to count II, felony murder, and to count IV, first degree sexual assault. The court responded that it would deny the motion until it had time to research the issue. Hessler filed a written motion to plead guilty on June 4, and a hearing was held June 18. The court denied the motion in an order dated July 25. The court stated that Hessler did not have an absolute right to have his plea accepted and that accepting the plea would cause more uncertainty than finality because both counts I and II charged Hessler with first degree murder and accepting a plea on one of the counts would create confusion as to whether trial was necessary or permitted on the other count. Hessler attempted to appeal the July 25 order, but this court dismissed the appeal for lack of jurisdiction. State v. Hessler, 267 Neb. xxii (No. S-03-967, Feb. 11, 2004).
On April 9, 2004, Hessler filed a motion to plead guilty to the count of felony murder and to all remaining counts other than premeditated murder. A hearing on the motion was scheduled for April 14. On that day, the State filed a motion to dismiss the count of felony murder. At the hearing, the court first considered the State's motion to dismiss. The court sustained the motion to dismiss the count of felony murder and then denied Hessler's motion to plead guilty to that count. Hessler declined to plead guilty to the remaining counts. Hessler attempted to appeal the April 14 order, but this court again dismissed the appeal. State v. Hessler, 268 Neb. xxiv (No. S-04-497, Sept. 1, 2004), cert. denied 543 U.S. 1161, 125 S.Ct. 1320, 161 L.Ed.2d 131 (2005).
On October 6, 2004, Hessler filed a plea in bar in which he asserted that he had previously been convicted and sentenced for an offense relating to another victim which he claimed was an element of the capital murder charge set forth in this case. During the investigation of the death of Heather, police linked Hessler to the August 20, 2002, sexual assault of J.B., who, like Heather, was a teenage girl who was delivering newspapers at the time she was assaulted. The State charged Hessler in connection with the sexual assault of J.B. After the crimes were committed and the charges filed in the instant case, on July 14, 2003, Hessler pled no contest to first degree sexual assault of J.B. Hessler was sentenced on August 21 to imprisonment for 30 to 42 years for the sexual assault of J.B. He did not appeal the conviction or sentence. In the plea in bar filed in this case, Hessler asserted that the Double Jeopardy Clause barred use of the sexual assault of J.B. to prove an aggravating circumstance in the present case because such use would subject him to a second prosecution and punishment for the sexual assault of J.B. On November 17, 2004, the court overruled Hessler's plea in bar. Hessler attempted to appeal the denial, but on November 24, we dismissed the appeal for lack of jurisdiction. State v. Hessler, 269 Neb. xxv (No. S-04-1304, Nov. 24, 2004).
Jury selection in Hessler's trial began November 29, 2004. Jury summonses had been sent to 250 people, and potential jurors were sent a supplemental questionnaire which asked, inter alia, whether the potential juror had formed an opinion about Hessler's guilt or innocence and the basis for such opinion. The venire included 107 potential jurors. The court excused 65 potential jurors, leaving 42 potential jurors upon whom the parties could exercise peremptory challenges. Hessler made motions to excuse six potential jurors for cause. The court overruled the motions after questioning the potential jurors regarding, inter alia, whether they could set aside their opinions and render impartial verdicts. Hessler later used peremptory challenges to remove four of the potential jurors he had sought to excuse, and the State used a peremptory challenge to remove one.
Only one of the six potential jurors that Hessler moved to excuse became a member of the jury. That juror was R.C.F. In response to questioning by the court and by Hessler, R.C.F. stated that he had formed the opinion that Hessler was guilty based on newspaper reports. R.C.F. initially stated, "I do not presume that he's innocent, no, sir." However, R.C.F. stated in response to questioning from the court that his opinion was not so strong that he could not set it aside and take an oath to render a fair and impartial verdict based solely upon the evidence presented at trial and the instructions given by the court. In reply to a question from Hessler's counsel, R.C.F. responded that Hessler did not need to prove his innocence and stated: "If I felt without a shadow of a doubt that he was guilty I would say so but I would not ... Hessler does not prove that he's innocent or guilty, I realize that comes from the State, not from [the defense]." R.C.F. also stated:
I believe in the death penalty but I also believe in a fair and impartial trial and I can set aside those feelings and those opinions and listen to the facts.
....
... [I]f the facts are such that the death penalty is not warranted, then I could be very fair and impartial.
Following examination of the venire but before the exercise of peremptory challenges, Hessler made an oral motion to change venue. Hessler asserted that he could not receive a fair trial in Scotts Bluff County and argued that his assertion was supported by responses to questionnaires indicating that a large number of potential jurors had formed the opinion that he was guilty. The court overruled the motion to change venue.
At trial, a videotape of the February 12, 2003, interrogation of Hessler was played to the jury. Other evidence at trial included, inter alia, testimony of a firearms examiner who opined that Hessler's gun fired the cartridge...
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